THE HONOURABLE SRI JUSTICE M.LAXMAN
SECOND APPEAL No.229 OF 2022
JUDGMENT:
1. The present appeal assails the judgment and decree dated 25.01.2022 in A.S.No.6 of 2015 on the file of the Court of the IX Additional District Judge at Kamareddy (for short, lower appellate Court), whereunder the appeal was allowed reversing the judgment and decree dated 24.10.2013 in O.S.No.46 of 2004 passed by the Court of the Senior Civil Judge at Kamareddy (for short, trial Court) and consequently the suit filed by the plaintiff for declaration of title and perpetual injunction was dismissed.
2. The appellants herein are the plaintiffs and the respondents herein are the defendants in the suit. Originally, plaintiff No.1 herein filed the above suit as against defendant Nos.1 to 7. During the pendency of the suit, both plaintiff No.1 and defendant No.1 died and their legal heirs were brought on record as plaintiff Nos.2 to 5 and defendant No.8, respectively. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the suit.
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3. The sum and substance of the case of the plaintiffs is that plaintiff No.1 is the only son of late Chiman Ali, who was the absolute owner of the suit properties. He married one Hussain Bee, after the death of his first wife. Defendant No.1 was born to Hussain Bee through her first husband. Defendant No.1 was brought up along with the plaintiff. After the death of Chiman Ali, plaintiff No.1 inherited the suit properties, being the sole legal heir. After succession, he was in physical possession and enjoyment of the suit properties. According to plaintiff No.1, defendant No.1 is his half-sister. Defendant No.1, without any title over the suit properties, tried to interfere with the possession of plaintiff No.1, he filed the present suit.
4. The case of defendant No.1 is that she is the real sister of plaintiff No.1 born through late Chiman Ali. During the life time of late Chiman Ali, he partitioned the properties orally by allotting half share in the suit properties to plaintiff No.1 and defendant No.1. The husband of defendant No.1 was taken in illitom and defendant No.1 was staying in the same village. Plaintiff No.1 filed declaration before the Land Reforms Tribunal, Kamareddy to the effect that defendant No.1 is his sister and oral partition took place between them.
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Therefore, defendant No.1 is having interest and right over the suit properties and prayed to dismiss the suit.
5. The trial Court, on the basis of the above pleadings, has framed the following issues:
"1. Whether the plaintiff is the absolute owner and possessor of the suit land?
2. Whether defendants 1 to 6 are the owners and possessors of ½ share in suit lands as per oral partition?
3. Whether defendant No.1 is the real sister of plaintiff?
4. Whether plaintiff sold away Ac.1-00 guntas in Sy.No.520 along back to Gondla Sayanna and Mittapally Balraj who is the father of defendant No.7 and they are in possession of said land since the date of purchase?
5. Whether defendant No.1 and her husband are illitom daughter and son in law of late father of plaintiff?
6. Whether the plaintiff is entitled to perpetual injunction as prayed for?
7. To what relief?"
6. The plaintiffs, to support their case, examined P.Ws.1 to 5 and relied upon Exs.A-1 to A-11. The defendants, to support their case, examined D.Ws.1 to 4 and relied upon Exs.B-1 to B-21.
7. The trial Court, basing on admission of D.W.2 - son of defendant No.1 (Ex.A-11) in a criminal case to the effect that 4 ML,J SA_229_2022 Chiman Ali married Hussain Bee after divorce from her first husband; that by the time of divorce, defendant No.1 born to Moulana and that defendant No.1 is not the real sister of the plaintiff, came to the conclusion that defendant No.1 is not the real sister of plaintiff No.1. Accordingly, the trial Court decreed the suit granting declaration of title and perpetual injunction in favour of the plaintiffs. Challenging the same, the defendants filed A.S.No.6 of 2015 and the lower appellate Court, by relying upon Exs.B-1, 13 and 15 to 21, came to the conclusion that defendant No.1 is the real sister of plaintiff No.1, and accordingly, reversed the judgment and decree passed by the trial Court and dismissed the suit. Challenging the same, the present appeal is filed at the instance of the plaintiffs.
8. This Court has framed the following substantial questions of law.
"1. Whether the findings of the lower appellate Court in reversing the findings of the trial Court with regard to status of defendant No.1 suffer from perversity?
2. Whether the findings of the lower appellate Court in reversing the declaration of title and grant of perpetual injunction suffer from perversity?"
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9. Heard learned counsel for the appellants/plaintiffs and the respondents/defendants on the above substantial questions of law.
Findings on substantial questions of law:
10. The findings of the trial Court show that D.W.2, who is the son of defendant No.1, made certain admissions before the criminal Court admitting that her mother (Hussain Bee) originally married Moulana and that after giving birth to defendant No.1 through Moulana, her mother divorced and married Chiman Ali. This admission coupled with the oral evidence of the plaintiffs' witnesses is the foundation to hold that defendant No.1 is not the real sister of plaintiff No.1.
11. The defendants strongly relied upon Ex.B-1, rythu passbook issued prior to A.P. Rights in Land and Pattadar Pass Books Act, 1971 and also relied upon Exs.B-15 and B- 16, which are deposition and declaration of plaintiff No.1 before the Land Reforms Tribunal. The defendants also relied upon Exs.B-17 to B-21 which are pahanis for the years 1970-71 to 1975-76 and 1977-78 to 1979-80.
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12. According to the defendants, these documents,
particularly Exs.B-15 and 16, clearly show that defendant No.1 is the real sister of plaintiff No.1.
13. The trial Court, while giving finding that defendant No.1 has failed to prove that she is the daughter of Chiman Ali, has rejected Ex.B-1 holding that it was issued under the repeal Act, and hence, it has no evidentiary value. This finding is untenable for the reason that an act done under the repealed Act is not obliterated and it still holds the evidentiary value.
14. The trial Court has not considered the effect of Exs.B- 15 and 16. According to the learned counsel for the plaintiffs, the plaintiffs denied the filing of Exs.B-15 and 16. However, Exs.B-15 and 16 are certified copies obtained from the Ceiling Authority. Therefore, they are having presumptive value. The plaintiffs must rebut such presumption. Except denial of filing of Exs.B-15 and 16, the plaintiffs have not taken any further steps to disprove the said documents. If the effect of all the exhibits, particularly Exs.B-1 and 16 to 21, go to show that the view adopted by the lower appellate Court in holding that defendant No.1 is 7 ML,J SA_229_2022 the real sister of plaintiff No.1 is also possible. The view of the trial Court is also possible basing on the oral evidence of the plaintiffs' witnesses to the effect that defendant No.1 is not the real sister of plaintiff No.1.
15. The trial Court, while holding that defendant No.1 is not the real sister, placed great credence to Ex.A-11, the admissions of D.W.2 in a criminal case. When the admissions were made, D.W.2 was not holding any interest over the suit properties and he acquired interest subsequently. However, his admission cannot be put to the disadvantage of defendant No.1, who is claiming that she is the real sister of plaintiff No.1. At the most, such admissions bind D.W.2, but not D.W.1 (defendant No.1). These facts were not considered by the trial Court.
16. Once the interest of defendant No.1 is established in the suit properties, the suit of the plaintiffs for declaration of title to the entire extent of land cannot be declared. Further, injunction cannot be granted for the reason that defendant No.1 is the real sister and she became the co-owner of the suit properties. Therefore, the lower appellate Court rightly denied the relief of declaration and injunction. It is made 8 ML,J SA_229_2022 clear that dismissal of the suit does not confer any exclusive title to defendant No.1. The remedies are left open to the parties.
17. It is to be noted that when two views are possible, the view adopted by the lower appellate Court cannot be disturbed in the second appeal. Therefore, there is no perversity in the findings of the lower appellate Court in coming to the conclusion that defendant No.1 is the real sister of plaintiff No.1. Accordingly, the substantial questions of law are answered.
18. In the result, the Second Appeal is dismissed, confirming the judgment and decree dated 25.01.2022 in A.S.No.6 of 2015 on the file of the Court of the IX Additional District Judge at Kamareddy. There shall be no order as to costs. Miscellaneous petitions, if any, pending, shall stand closed.
________________ M.LAXMAN, J Date: 03.08.2022 TJMR